Citation NR: 9742381
Decision Date: 12/23/97 Archive Date: 12/30/97
DOCKET NO. 95-32 935A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Houston,
Texas
THE ISSUES
1. Entitlement to service connection for arteriosclerotic
heart disease (ASHD).
2. Whether new and material evidence has been submitted to
reopen a claim of service connection for valvular heart
disease.
3. Entitlement to an increased rating for nephrolithiasis,
currently evaluated as 10 percent disabling.
4. Entitlement to a compensable disability evaluation for
service-connected hemorrhoids.
5. Entitlement to a compensable disability evaluation for
service-connected actinic keratosis and skin cancers of the
face.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
G. A. Wasik
INTRODUCTION
The veteran served on active duty from June 1955 to August
1985.
This matter is before the Board of Veterans' Appeals (Board)
on an appeal of a September 1994 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO).
By rating decision dated in September 1985, the RO granted
service connection for kidney stones, hemorrhoids and
prostatic hypertrophy. The RO denied service connection for
granulomas in the lungs, degenerative arthritis, valvular
heart disease, and hyperuricemia.
By rating decision dated in September 1994, the RO granted
service connection for actinic keratosis and basal cell
carcinomas, denied service connection for valvular heart
disease and ASHD and denied increased ratings for
nephrolithiasis and hemorrhoids.
In January 1995, the veteran submitted a statement indicating
that he disagreed with the September 1994 rating decision
which denied service connection for valvular heart disease,
ASHD, and rate increases for nephrolithiasis and hemorrhoids.
He also disagreed with the non-compensable disability
evaluation assigned for his actinic keratosis and basal cell
carcinoma. The veteran also incorrectly stated that the
September 1994 rating decision denied service connection for
a prostate gland condition, granulomas in the lungs,
degenerative arthritis of the right wrist and forearm and
hyperuricemia. He was in disagreement with these
determinations also.
The RO promulgated a statement of the case in September 1995
for the following issues: entitlement to service connection
for degenerative arthritis of the right wrist, granulomas of
the lungs, ASHD, valvular heart disease, benign prostatic
hypertrophy and hyperuricemia, and entitlement to increased
ratings for nephrolithiasis, hemorrhoids, and actinic
keratosis and skin cancers of the face.
The Board construes the January 1995 statement as a timely
filed notice of disagreement for the denial of service
connection for valvular heart disease and ASHD, and for the
denial of increased ratings for nephrolithiasis, hemorrhoids,
and actinic keratosis and skin cancers of the face. The
Board further construes the January 1995 statement as a
request to reopen the claims of entitlement to service
connection for a prostate condition, granulomas of the lungs,
degenerative arthritis of the right wrist and hyperuricemia.
The Board construes the September 1995 statement of the case
as a denial of the requests to reopen. Statements made in
the substantive appeal as to the issues listed on the front
page of this decision, are considered a notice of
disagreement with the RO’s decision as to the requests to
reopen claims for service connection for degenerative
arthritis of the right wrist, granulomas of the lungs, and
prostate condition. These issues are referred to in numbered
paragraph six of the remand portion of this decision. The
veteran did not submit a notice of disagreement with the
decision not to reopen his claim for service connection for
hyperuricemia. That issue is not inextricably intertwined
with the issues on appeal and is referred to the RO for
appropriate action.
The September 1985 rating decision granted service connection
for prostatic hypertrophy. The notice of that decision sent
to the veteran advised him, apparently incorrectly, that
service connection for a prostate gland condition had been
denied.
The Board notes that entitlement to service connection for
valvular heart disease was denied in the September 1985
rating decision. This decision was not timely appealed and
became final. The veteran's attempt to reopen this claim
must be analyzed using the standard to reopen final prior
denials.
In light of the above discussion, the issues on appeal are as
set out on the title page.
The Board notes that on a statement received in April 1996,
the veteran has claimed entitlement to service connection for
hypercholesterolemia. The issue has not been developed for
appellate consideration, is not inextricably intertwined with
the current appeal and is, therefore, referred to the RO for
appropriate action.
The issues of entitlement to service connection for ASHD and
entitlement to an increased rating for service-connected
actinic keratosis and skin cancers of the face will be
discussed in the Remand portion of this decision.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that he incurred valvular heart disease
during active duty. He also contends that the symptomatology
related to his service-connected nephrolithiasis and
hemorrhoids are of sufficient severity to warrant ratings
higher than are currently in existence.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1997), has reviewed and considered
all of the evidence and material of record in the claims
file. Based on its review of the relevant evidence in this
matter, and for the following reasons and bases, it is the
decision of the Board that the preponderance of the evidence
is against the claims of entitlement to increased ratings for
nephrolithiasis and hemorrhoids and it is also the decision
of the Board that new and material evidence has been
submitted sufficient to reopen the claim of entitlement to
service connection for valvular heart disease.
FINDINGS OF FACT
1. In September 1985, the RO denied entitlement to service
connection for valvular heart disease.
2. Evidence received since the September 1985 rating
decision is new, probative of the issue at hand and, when
viewed in the context of all the evidence of record, both new
and old, raises a reasonable possibility of changing the
prior outcome.
3. The veteran's service-connected nephrolithiasis is
manifested by multiple bilateral ureteral caliculi, all of
which pass spontaneously.
4. The veteran's service-connected hemorrhoids are currently
asymptomatic.
CONCLUSIONS OF LAW
1. Evidence received since the Board denied entitlement to
service connection for valvular heart disease is new and
material, and the veteran’s claim for that benefit has been
reopened. 38 U.S.C.A. §§ 5108, 7104 (West 1991 & Supp 1997);
38 C.F.R. § 3.156(a) (1996).
2. The requirements for a rating in excess of 10 percent for
nephrolithiasis are not met. 38 U.S.C.A. §§ 1155, 5107(a)
(West 1991); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.115b, Diagnostic
Codes 7508, 7509 (1996).
3. The requirements for a compensable rating for hemorrhoids
are not met. 38 U.S.C.A. §§ 1155, 5107(a); 38 C.F.R.
§§ 4.1, 4.2, 4.7, 4.114, Diagnostic Code 7336 (1996).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Whether new and material evidence has been submitted to
reopen the claim of entitlement to service connection for
valvular heart disease.
Review of the service medical records indicates that the
veteran was evaluated for cardiac abnormality in July 1985.
He denied any history of cardiovascular disease or rheumatic
fever. He also denied any symptoms related to cardiovascular
disease including chest pain or discomfort, syncope or near
syncope, palpitations, nocturnal dyspnea or orthopnea. The
assessment was valvular heart disease manifested by aortic
insufficiency, most commonly due to a congenitally bicuspid
aortic valve. On a Report of Medical History dated in July
1985, the veteran denied that he ever had rheumatic fever.
On the service exit examination dated in July 1985, a history
of systolic ejection murmur was noted as well as valvular
heart disease manifested by aortic insufficiency most
commonly due to a congenital bicuspid aortic valve was noted.
By rating decision dated in September 1985, the RO denied, in
pertinent part, service connection for valvular heart
disease. The RO determined that the disability was a
congenital and developmental defect. The veteran was
informed of the denial via correspondence dated in October
1985. The veteran did not appeal the decision which became
final in October 1986.
In August 1993, the veteran submitted an application to
reopen his claim for service connection for a valvular heart
disease.
The evidence added to the record since the September 1985
rating decision by the RO consists of the following:
(1) Duplicate copies of the service medical records.
(2) Copies of VA outpatient treatment records. In June
1992, physical examination revealed preserved left
ventricular systolic function without left ventricular
hypertrophy or dilation; mild mitral regurgitation; tricuspid
insufficiency suggesting normal pulmonary artery systolic
pressures; aortic stenosis with mild to moderate associated
aortic insufficiency. It was noted that the abnormal
characteristics of the sub mitral valve structure was most
consistent with unusual diastolic motion of the septal
chordae impinged upon by the aortic insufficiency.
(3) VA examination conducted in January 1994. Physical
examination revealed that the cardiac silhouette did not
appear to be enlarged by percussion. The heart had a regular
rhythm. A T.T-T.T.T. systolic murmur was present over the
aortic focus with radiation to the apex and also both sides
of the neck, but mainly on the right side. There were no
signs of congestive heart failure and the neck veins were not
distended in the supine position. There was no evidence of
peripheral edema or cyanosis or clubbing of the fingers. The
pertinent diagnosis was heart valve disease consistent with
aortic stenosis and mitral valve regurgitation and bicuspid
valve by history.
(4) Statement from P. J. Napoli, M.D. dated in March 1996.
The doctor reported that the veteran underwent coronary
bypass grafting and aortic valve replacement. The surgery
evidenced the fact that the veteran had a rheumatic tricuspid
aortic valve which differed from the preoperative impression
of a congenital bicuspid aortic valve.
(5) Statement from A. C. Gorman, M.D., dated in March 1996.
The doctor reported that the veteran was recently
hospitalized for angina and congestive failure. Cardiac
catheterization was performed and significant atherosclerotic
coronary artery disease and severe aortic stenosis was
observed. The veteran then underwent coronary bypass
grafting and aortic valve replacement. According to the
operation report, the aortic valve was a trileaflet valve and
heavily calcified.
As noted, the September 1985 RO decision that denied service
connection for valvular heart disease is final.
38 U.S.C.A. § 7104 (West 1991). Once a denial of a claim of
service connection is final, the claim cannot subsequently be
reopened unless new and material evidence has been presented.
38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). When a veteran
seeks to reopen a claim based on additional evidence, a two-
step analysis must be performed. First, it must be
determined whether the evidence is “new and material.” If it
is determined that the veteran has produced new and material
evidence, the claim is reopened and the claim is evaluated on
the merits, in light of all the evidence, both old and new.
Manio v. Derwinski, 1 Vet. App. 140, 145 (1991).
“New” evidence means more than evidence which was not
previously contained in the record and which is more than
merely cumulative. Colvin v. Derwinski, 1 Vet. App. 171, 174
(1991). Material evidence is that which is relevant and
probative of the issue at hand. Id. Further, to be new and
material, evidence must, when taken together with all the
evidence of record, create a reasonable possibility that the
outcome would be changed. Manio, 1 Vet. App. at 145.
The United States Court of Veterans Appeals (Court) has
recently clarified that, with respect to the issue of
materiality, the newly presented evidence need not be
probative of all the elements required to award the claim as
in this case dealing with claims for service connection.
Evans v. Brown, 9 Vet. App. 273, 284, (1996) (citing Caluza
v. Brown, 7 Vet. App. 498, 506 (1995), aff’d 78 F.3d 604
(Fed. Cir. 1996) (table)). Rather, it is the specified bases
for the final disallowance that must be considered in
determining whether the newly submitted evidence is
probative. Such evidence must tend to prove the merits of
the claim as to each essential element that was a specified
basis for that last final disallowance of the claim. Id. If
the evidence is “new” and “probative,” then it must be
determined whether such evidence presents a reasonable
possibility of changing the outcome of the prior decision
based on all the evidence. If these conditions are met, then
the evidence is both “new” and “material.” Evans, at 284.
In the September 1985 rating decision which denied the claim,
the RO decided that the veteran's valvular heart disease was
manifested by aortic insufficiency due to a congenital
bicuspid valve, class 1A, had pre-existed service and no
aggravation of the disability during service was
demonstrated. In seeking to reopen the claim, the veteran
would have to produce new and material evidence bearing on
the question of whether his valvular heart disease was
aggravated by active duty or was incurred during active duty.
Item (1), duplicate copies of service medical records is not
new as they were of record at the time of the September 1985
rating decision.
Item (2), copies of VA outpatient treatment records are new.
However, they are not material as they do not relate the
veteran's valvular heart disease to active duty at all.
Item (3), the January 1994 VA examination is new as it was
not of record at the time of the prior final decision.
However the evidence is not material as it does not link the
veteran’s valvular heart disease to active duty.
Item (4), Dr. Napoli’s March 1996 opinion is new in that it
was not of record prior to the September 1985 rating
decision. The evidence is also material as it notes that
surgery determined that the veteran had a rheumatic tricuspid
aortic valve instead of a congenital bicuspid aortic valve.
The September 1985 rating decision denied the veteran's claim
of valvular heart disease based on the finding that the
veteran had a congenital aortic valve. Dr. Napoli’s opinion
provides evidence that the veteran did not have a congenital
defect of his heart valve but rather a defect due to
rheumatic fever.
Item (5), Dr. Gorman’s letter dated in March 1996 is also new
and material for the same reason as Dr. Napoli’s letter. Dr.
Gorman reported that the veteran's aortic valve was a
trileaflet valve as opposed to a congenital bicuspid valve.
This letter reinforces the information contained in Dr.
Napoli’s letter finding that the veteran did not have a
congenital heart disability but rather one that was the
result of disease processes.
Items (4) and (5) when considered with all the evidence of
record suggest that the defective valve initially identified
during service was an acquired disability. As such, it
presents a reasonable possibility of changing the prior final
decision and meets the criteria for a finding of new and
material evidence sufficient to reopen a prior final denial.
The veteran has presented evidence essentially showing a
diagnosis of the existence of rheumatic tricuspid aortic
valve rather than a congenital bicuspid aortic valve. This
evidence, the Board finds, meets the test as to whether the
veteran has submitted new and material evidence to reopen his
claim. To this extent, therefore, the veteran’s appeal must
be granted.
Increased ratings general provisions
The Board notes that the veteran's claim are "well-grounded"
within the meaning of 38 U.S.C.A. § 5107. That is, the Board
finds that he has presented claims which are plausible. The
Board is also satisfied that all relevant facts have been
properly developed. No further assistance to the veteran is
required to comply with the duty to assist mandated by
38 U.S.C.A. § 5107.
Disability evaluations are administered under the Schedule
for Rating Disabilities that is found in 38 C.F.R. § Part 4
(1996) and is designed to compensate a veteran for the
average impairment in earning capacity. 38 U.S.C.A. § 1155
(West 1991). Separate diagnostic codes identify the various
disabilities. Id.
In evaluating the severity of particular disability, it is
essential to consider its history. 38 C.F.R. §§ 4.1 and 4.2
(1996).
In reaching its conclusions in this case the Board has
considered all of the provisions of Chapters 3 and 4 of 38
C.F.R. (1994). The Board has specifically considered the
provisions of 38 C.F.R. § 3.321. Under the provisions of 38
C.F.R. § 3.321, in exceptional cases an extra-schedular
evaluation can be provided in the interest of justice. The
governing norm in such a case is that the case presents such
an unusual or exceptional disability picture with such
related factors as marked interference with employment or
frequent periods of hospitalization as to render impractical
the application of regular schedular standards. In this case
marked interference with employment has not been shown and
the veteran’s disabilities have not required any periods of
recent hospitalization.
The provisions of 38 C.F.R. § 4.7 (1996), provides for
assignment of the next higher evaluation where the disability
picture more closely approximates the criteria for the next
higher evaluation. As will be discussed below, the veteran's
disabilities do not more closely approximate the criteria for
the next higher evaluations.
Entitlement to an increased rating for nephrolithiasis,
currently evaluated as 10 percent disabling.
Review of the service medical records indicates that the
veteran was first diagnosed with renal caliculi (kidney
stones) in February 1975. Thereafter, he was periodically
diagnosed with and treated for bilateral renal caliculi. A
July 1985 excretory urogram evidenced bilateral renal
caliculi. On the service exit examination dated in July
1985, recurrent bilateral renal lithiasis was noted.
By rating decision dated in September 1985, the RO granted,
in pertinent part, service connection for kidney stones and
evaluated the disability as non-compensably disabling.
VA outpatient treatment records were associated with the
claims file. In August 1990, the veteran was diagnosed with
a proximal ureteral stone and left nephrolithiasis. He had
good renal function bilaterally without obstructions. No
evidence of hydronephrosis was present. In December 1994, it
was reported that the veteran complained of “nocturia X 4,”
daytime frequency every 45 minutes, poor stream and
occasional incontinence. The impression was severe
prostatism and recurrent stone formation.
The veteran was afforded a VA examination in January 1994.
It was noted that the veteran had a history of
nephrolithiasis including multiple ureteral caliculi from
both kidneys which passed spontaneously. The veteran had
never been hospitalized for the nephrolithiasis and the
kidney stones had all been calcium oxalate stones. Physical
examination revealed that the abdomen was flat with no
palpable masses, tenderness or enlarged organs. The
pertinent diagnosis was multiple bilateral ureteral caliculi,
all of which pass spontaneously.
The veteran’s nephrolithiasis is currently evaluated as 10
percent disabling under 38 C.F.R. § 4.115(b) Diagnostic Code
7508. Diagnostic Code 7508 provides that nephrolithiasis is
to be rated as hydronephrosis, except if there is recurring
stone formation requiring one or more of the following: diet
therapy or drug therapy or invasive or non-invasive
procedures more than two times per year.
Diagnostic Code 7509 provides the rating criteria for
hydronephrosis. Hydronephrosis that is severe is rated as
renal dysfunction. Otherwise, hydronephrosis is assigned a
30 evaluation when manifested by frequent attacks of colic
with infection (pyonephrosis) and impaired kidney function;
is assigned a 20 percent evaluation when manifested by
frequent attacks of colic and requiring catheter drainage;
and is assigned a 10 percent evaluation when manifested by
only an occasional attack of colic that is not infected and
not requiring catheter drainage. 38 C.F.R. § 4.115b,
Diagnostic Code 7509 (1996).
The Board finds that a rating in excess of 10 percent for the
veteran's service-connected nephrolithiasis is not warranted.
There have been not recent reports of treatment for
nephrolithiasis. Although the veteran was reported to have
recurrent stone formation on VA outpatient treatment in
December 1994, no recent stones were reported, symptoms
related to voiding were noted, but the principal impression
appears to have been severe prostatitism. There is no
evidence of record, including the December 1994 outpatient
treatment record, that the veteran has had frequent attacks
of colic with infection and impaired kidney function or
requiring catheter drainage.
Entitlement to a compensable disability evaluation for
service-connected hemorrhoids.
Review of the service medical records indicates that in
August 1974, external hemorrhoids were diagnosed. On
physical examination in June 1982, internal and external
hemorrhoids were diagnosed.
By rating decision dated in September 1985, the RO granted
service connection, in pertinent part, for hemorrhoids and
evaluated the disability as non-compensably disabling.
The veteran was afforded a VA examination in January 1994.
It was noted that the veteran had hemorrhoids in the past,
but at the time of the examination, he had no symptoms and
hemorrhoids were of no concern to him. He has not received
treatment for hemorrhoids since that time, and there is no
evidence of a change in his condition since the VA
examination.
Under 38 C.F.R. Part 4, Diagnostic Code 7336, a non-
compensable evaluation is provided where either external or
internal hemorrhoids are mild or moderate. A 10 percent
evaluation is warranted for large or thrombotic, irreducible
hemorrhoids with excessive redundant tissue, evidencing
frequent recurrences.
The Board finds that an increased rating is not warranted
under the provisions of Diagnostic Code 7336. On the latest
VA examination, dated in January 1994, the veteran reported
that his hemorrhoids were asymptomatic. The outpatient
treatment records associated with the claims file do not
indicate otherwise. As there is no evidence of record
indicating that the veteran had large or thrombotic,
irreducible hemorrhoids with excessive redundant tissue, an
increased rating is denied.
ORDER
The veteran having submitted new and material evidence to
reopen a claim for entitlement to service connection for
valvular heart disease, the appeal is granted to this extent.
Entitlement to a rating in excess of 10 percent for
nephrolithiasis is denied.
Entitlement to a compensable disability evaluation for
hemorrhoids is denied.
REMAND
Entitlement to service connection for valvular heart disease
As the veteran has submitted new and material evidence to
reopen a claim for service connection for an valvular heart
disease, the RO must now consider the issue on a de novo
basis. The case must be remanded to the RO for consideration
of the case on the merits. Bernard v. Brown, 4 Vet. App.
384, 394 (1993).
Additionally, the Board notes that the veteran underwent
coronary artery bypass grafting and aortic valve replacement
in January 1996. Only one record from this surgery (Patient
Discharge Instructions) has been associated with the claims
file and attempts must be made to obtain the rest.
Entitlement to service connection for ASHD.
Service connection may be established where the evidence
demonstrates that an injury or disease resulting in
disability was contracted in line of duty coincident with
military service, or if preexisting such service, was
aggravated therein. 38 U.S.C.A. §§ 1110, 1131;
38 C.F.R. § 3.303.
Review of the service medical records indicates that a May
1968 X-ray demonstrated calcification within the wall of the
abdominal aorta. The impression was arteriosclerotic disease
of the aorta. A chest X-ray report from December 1975
contained the impression of a chest showing “atherosclerotic
changes of the aorta and left ventricular contour.” On a
Report of Medical History dated in July 1985, the veteran did
not indicate that he had had any problems with his heart.
VA outpatient treatment records were associated with the
claims file. On a treatment note dated in July 1992, it was
reported that the veteran had bicuspid aortic valve. It was
reported that the tortuous aorta with atherosclerotic changes
was “almost certainly secondary to the abnormal aortic
valve.”
The veteran was afforded VA examinations in January 1994. He
reported that he had a history of heart murmur, rheumatic
fever, hypertension or diabetes at the time of his discharge
examination. He reported a history of having episodes of
upper respiratory infections with high fever from the late
1950’s up until the late 1970’s, more severe in the 1960’s
when the veteran was stationed in Turkey and Vietnam. X-rays
revealed tortuosity of the aorta and no acute cardiopulmonary
process could be identified. On the general medical
examination, the pertinent diagnosis was atherosclerosis of
the thoracic aorta. The etiology of the atherosclerosis of
the thoracic aorta was not provided.
The Board finds that a remand is required in order to
determine the relationship, if any between atherosclerosis
and the abnormal aortic valve and to determine whether the
aortic valve condition is a congenital or acquired condition.
Entitlement to a compensable disability evaluation for
service-connected actinic keratosis and skin cancers of the
face.
By rating decision dated in September 1994, the RO granted
service connection for actinic keratosis and skin cancers of
the face and evaluated the disability as non-compensably
disabling under Diagnostic Code 7800.
VA outpatient treatment records were associated with the
claims file. In March 1991, it was noted that the veteran
had multiple erythematous papules. The diagnosis was actinic
keratosis. In June 1993, dry, scaly lesions on the cheeks
and forehead were noted. A shave biopsy of the forehead and
nose conducted the same month evidenced basal cell carcinoma.
In July 1993, excision of the basal cell carcinoma on the
right forehead was performed. The veteran underwent tissue
graft the same month as a result of the excision of the
carcinoma.
The veteran was afforded a VA examination in January 1994.
It was noted that the veteran had recurrent basal cell
carcinoma of the face which had been treated in the past and
was scheduled for more treatment. The pertinent diagnosis
was multiple actinic keratosis. No opinion was expressed as
to the degree of disfigurement resulting from that condition.
38 C.F.R. § 4.118 Diagnostic Code 7818 provides that
malignant new skin growths scars and disfigurement are to be
rated on the extent of constitutional symptoms and physical
impairment. The RO found, and the Board agrees that the most
accurate representation for the symptomatology of the
veteran's service-connected actinic keratosis and skin
cancers of the face is for disfiguring scars of the head,
face and neck. Diagnostic Code 7800 provides the rating
criteria for disfiguring scars of the head, face or neck.
Under DC 7800, a non-compensable evaluation in assigned for
slight scars to the head, face or neck. A 10 percent
evaluation is warranted upon a showing of a moderate,
disfiguring scar. A 30 percent rating is for assignment for
severe scarring, especially if producing a marked and
unsightly deformity of the eyelids, lips, or auricles. 38
C.F.R. Part 4, § 4.118, DC 7800 (1996).
The Board finds the evidence of record inadequate to rate the
veteran's scars under Diagnostic Code 7800. On the latest VA
examination conducted in January 1994, the examiner did not
comment on the extent of disfigurement of the veteran's scars
resulting from his service-connected disability.
The Board notes that the veteran has submitted two
photographs of his face to demonstrate the residuals of his
service-connected actinic keratosis and skin cancers of the
face. The pictures are not entirely focused and also
apparently do not evidence a 2 inch scar on the right eyebrow
as reported by the veteran. The Board finds that photographs
must be obtained which present a clear visual image or images
of the veteran's scars due to the actinic keratosis and skin
cancers of the face.
Additionally, the veteran’s scars can be rated under
Diagnostic Codes 7803, 7804 and 7805. Diagnostic Code 7803
provides the rating criteria for scars which are superficial,
poorly nourished with repeated ulceration. Diagnostic Code
7804 provides the rating criteria for scars which are
superficial, tender and painful on objective demonstration.
Diagnostic Code 7805 provides the rating criteria for scars
based on limitation of the function of the part affected.
The Board finds the evidence of record inadequate to rate the
veteran's scars under Diagnostic Codes 7803, 7804 and 7805.
On the VA examination there was no discussion of the
symptomatology relating to the veteran's scars.
The United States Court of Veterans Appeals has held that the
duty to assist the veteran in obtaining and developing facts
and evidence to support his claim includes obtaining
pertinent outstanding medical records as well as adequate VA
examinations. Littke v. Derwinski, l Vet. App. 90 (l990).
This duty includes an examination by a specialist when
needed. Hyder v. Derwinski, l Vet. App. 221 (1991).
Wherefor, the issue of entitlement to service connection for
ASHD and valvular heart disease and the claim of entitlement
to a compensable rating for service-connected actinic
keratosis and skin cancers of the face are remanded for the
following development:
1. The RO should obtain the names and
addresses of all medical care providers
who have treated the veteran for ASHD,
valvular heart disease and actinic
keratosis since the veteran's discharge
from active duty. After securing the
necessary releases, the RO should obtain
these records not already associated with
the claims file. The Board is
particularly interested in the records
relating to the veteran's heart surgery
conducted in January 1996.
2. The veteran should be afforded a VA
dermatology examination, to ascertain the
nature, severity and manifestations of
his service-connected actinic keratosis
and skin cancers of the face, including
residual scars. All evaluations,
studies, and tests deemed necessary by
the examiner should be accomplished, and
the examination report must include UN-
retouched color photographs of the
affected area. It should be noted if
pain and tenderness can be objectively
demonstrated and if there is any
ulceration. If the examination discloses
the presence of disfiguring scars of the
head, the examiner is requested to offer
an opinion and comments as to the degree
of disfigurement or deformity, that is,
whether the disfigurement or deformity is
slight, moderate, severe, or
exceptionally repugnant, or if there is
marked discoloration, color contrast, or
the like in addition to tissue loss and
cicatrization. A complete rationale for
all opinions and conclusions drawn should
be provided. The claims file and a copy
of this remand, must be made available to
the examiner for review prior the
examination.
3. The veteran should be afforded a VA
cardiology examination, to determine the
nature and severity of the veteran's
valvular heart disease and ASHD. All
evaluations, studies, and tests deemed
necessary by the examiner should be
accomplished. The examiner is asked to
express an opinion as to the etiology of
the ASHD and valvular heart disease, to
determine if the valvular heart disease
was congenital or acquired in nature and
to determine the relationship, if any,
between the ASHD and the valvular heart
disease and the relationship between
those conditions and the veteran's period
of active duty. The doctor must supply
an opinion as to whether it is more
likely than not that the valvular heart
disease was incurred during active duty
and whether it was more likely than not
that the ASHD is related to active duty
either on a direct basis or secondary to
the valvular heart disease.
4. Following completion of the
foregoing, the RO must review the claims
folder and ensure that all of the
foregoing development actions have been
conducted and completed in full. If any
development is incomplete, including if
the requested examination does not
include all test reports, special studies
or opinions requested, appropriate
corrective action is to be implemented.
5. Thereafter, the RO should undertake
any other indicated development, review
all evidence of record, and readjudicate
the issues of entitlement to service
connection for ASHD and valvular heart
disease and the claim of entitlement to
an increased rating for service-connected
actinic keratosis and skin cancers of the
face.
6. The veteran and his representative
should be furnished with a supplemental
statement of the case concerning the
issues of whether new and material
evidence has been submitted to reopen
claims for service connection granulomas
in the lungs, degenerative arthritis of
the right wrist. He should also be
advised of the September 1985 decision
granting service connection for prostatic
hypertrophy. The veteran should be
advised the steps necessary to perfect
appeals as to these issues, including the
requirement to submit a substantive
appeal within 60 days of the date of the
supplemental statement of the case. 38
C.F.R. § 20.302(c) (1997).
If the benefits sought on appeal are not granted to the
satisfaction of the veteran, a supplemental statement of the
case should be issued as to any remaining issues, and the
veteran and his representative provided an opportunity to
respond. Thereafter, the case should be returned to the
Board for further consideration, if otherwise in order. By
this REMAND, the Board intimates no opinion as to any final
outcome warranted. No action is required of the veteran
until he is notified by the RO.
Mark D. Hindin
Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1997), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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